Projects of Interest

Thanks to Steve Wilent for this link with these photos, and thanks to the people who provided the photos and captions.

I’m still on vacation, but thought this worthy and timely to post..here is the link. It seems like this is the end of this but perhaps not.. lawyers can weigh in.

For those who are interested in the specific claims made and the details, the document gives a flavor of that, yet is relatively short. The details regarding the cumulative effects assertions by plaintiffs is mildly interesting.

Here’s a brief summary from an unnamed source, for the details on this blog you can search on “Colt Summit” in the search box.

The plaintiffs initially filed 12 counts in their original complaint. The Forest Service prevailed on 11 of those counts. The one count on which they lost was that of cumulative impacts to lynx. The Forest Service repackaged the cumulative impacts analysis they had already completed into a “supplement to the environmental assessment.” Judge Molloy ruled that this document was not a NEPA document, and thus it was not sufficient to lift the injunction. So the Forest Service repackaged the information again into a “supplemental environmental assessment” and submitted that to the Court in December 2013 along with a motion requesting that the injunction against work on the Project be lifted. Today’s order by Judge Molloy is in response to this latest motion by the Forest Service.

Below are a couple of excerpts:

“Plaintiffs claim that, although the Forest Service provides useful information, there is “no analysis of the total, combined impacts.” (Doc. 74 at 1.) However, Plaintiffs ignore the lengthy discussion and summary table of cumulative impacts in the SEA. X-001:FS78942-78982; specifically X-001:FS78964-78967 (Table 22 is the cumulative effects table Plaintiffs argue insufficient) X-OOI :FS78967-78980 (discussion following the table that explains the underlying analysis used in creating the summary table). Plaintiffs insist there is no analysis of the total combined impacts, as the bullet-point list summarizing the cumulative analysis focuses only on the impacts of the Colt Summit Project rather than outlining an aggregate analysis. X-OOI :FS78981. However, the table and the overall summary are supported by hundreds of pages of data, as well as fifteen pages of a cumulative effects analysis.” – page 9

“Even though Plaintiffs do not like the result of the Forest Service’s aggregate cumulative analysis, NEPA does not require specific outcomes, but only provides the process that agencies should use in order to take a “hard look” at a project’s impacts. The requisite “hard look” was taken here.” – page 14

One of my goals on this blog has been to try to share some of the “behind the scenes” that goes on with Forest Service projects, so that colleagues in academia and elsewhere can get an idea of what it’s like to be a practitioner in this world.

Here are the note from an appeals resolution meeting for the project we’ve been following, Colt Summit. Remember it was collaboratively developed, and the acres of commercial thinning reduced from 1298 to 597 based on public comment. This resolution call was open to the public.

Also remember that I said there were two pieces of information about “what groups want”. One is “what do you want to change about the analysis?” and the other is “what do you want to change on the ground for this project.”

In this transcript, the FS keeps asking “what do you want?”…and the appellants say “give us something and we’ll see if we like it.” That’s the old “bring me a rock” approach. And why should the FS “bring them a rock”?

Because, in the words of Sarah Jane Johnson “you are asking us to defend our appeal, we are all irritated by that, and we did a lot of work on our appeal, our offer is drop the project and do an EIS, you are supposed to provide a counter offer. ”

Hmm. “you are supposed to make a counteroffer..” is that in law, regulations or policy? Not that I recall.

This meeting resonated with me, as I have been in similar discussions with the same flavor, in fact it have me a flashback or two.

In the interests of being fair, I am posting the whole thing instead of an excerpt. Now it could be argued that the note-taker didn’t adequately capture the comments.. so perhaps all these meetings should be open to the public and videotaped?

May 25, 2011 1:30pm

Appeals Panel Resolution Meeting Conference Call

Notes taken by Allison Kolbe

Participants at Lolo SO: Scott Tomson, Tim Love, Barb Beckes, Tami Paulsen, Shane Hendrickson, Sandy Mack, Debbie Austin, Chris Partyka, Carly Lewis, Boyd Hartwig, Allison Kolbe

Debbie Austin: I will go over our agenda, we are here to resolve appeals for Colt Summit, the three appeals came from Friends of the Wild Swan and Montana Ecosystems Defense Council, Alliance for the Wild Rockies and Native Ecosystem Council and the third from Native Ecosystem Council and Alliance for the Wild Rockies. We also received a Notice of Intent to Sue from the Western Environmental Law Center on behalf of those groups.

This project had broad public involvement including participation by the Lolo Restoration Committee and the Southwest Crown of the Continent group. This project is unique because it is fully funded for implementation and for monitoring implementation and effects monitoring.

Our agenda for this meeting is:

1. Debbie Austin will make introductions, speak to why we are here (to see if we can come to resolution), introduce everyone in the meeting, we will go until 3:30 or 4pm if needed

2. Chris Partyka will go over the appeals process

3. Tim Love will give a Project Overview, including a quick summary of project including the

4. Sandy Mack will explain how we grouped the appeal points into issues

5. What do the appellants want to focus on, and what are their most important concerns?

6. Public on the call can comment

7. Closeout/Next Steps/Wrap‐Up/Resolved Issues

Participants in room introduced themselves: Debbie Austin, Sandy Mack, Shane Hendrickson, Boyd Hartwig, Tami Paulsen, Barb Beckes, Scott Tomson, Allison Kolbe, Carly Lewis, Chris Partyka

Participants on the phone introduced themselves: Arlene Montgomery, Steve Kelley, Michael Garrity, Sara Jane Johnson, Scott Brennan, Megan Birzell, Joe Kirkley, Melissa Hayes, and Julia Altemus.

Chris Partyka: The Administrative Appeals Process is designed to review public comments that question the decision that has been made, and anyone who submitted comments can appeal. There is a 45 day appeal period after the decision was made, then the appeal period closes and the Forest Service has 45 days to review the process and decision. This is an informal disposition meeting to try to resolve issues.

The Regional Appeal Panel determines whether we have done an adequate job of addressing issues that were brought up during the appeal period. The appeal panel is made of folks from other Forests and they are not hand selected. The panel reviews the issues and information and the Reviewing Officer
submits the findings to the Deputy Regional Forester who is the deciding officer and they determine whether the Forest did an adequate job. The Deciding Officer will uphold the decision, uphold the decision with instructions that there may be some item sthat could be covered in the project record, or withdraw decision and the Forest redoes the project. We are at day 15 and have until Tuesday to submit the project record to the Regional Office.

Sarah Jane Johnson: I question the chances of resolving the appeals, the chances are non‐existent that we will resolve any offers or changes by either side.

Debbie Austin: this is an opportunity for us to hear each other’s concerns.

Sarah Jane Johnson: We aren’t interested in going over our issues on our appeal, we have outlined them in our appeals. We aren’t going to argue our appeal.

Debbie Austin: we are here to see if we can do anything to move forward.

Chris Partyka: in these meetings there is an opportunity to find consensus, we can explain our analysis.

Sarah Jane Johnson: it sounds to me like you want to go through each of our issues.

Debbie Austin: we have grouped your issues, and we would like to discuss…

Sarah Jane Johnson: there is that word again, discuss, I don’t know what we will discuss, if you have questions, or if we do we could ask each other to clarify questions

Debbie Austin: the goal of meeting is to see if we can resolve, or clarify or gain a better understanding of issues.

Arlene Montgomery: you have seen our appeals, do you have something that you would want to change in the project? We have laid out what we think and what the deficiencies are, do you have something that the forest would propose?

Michael Garrity: we want to know if you are going to make any changes, otherwise this is a waste of time.

Debbie Austin: this is not an offer, counter‐offer process, I came to gain a better understanding of what your concerns were.

Michael Garrity: you have seen our appeal, if you are here to resolve our appeal then I want to hear how you are going to address our appeal, and I will tell you now I am not going to drop my appeal and I am willing to listen if you are going to make some changes.

Tim Love: The Colt Summit FONSI was signed March 25, 2011. The purpose and need of this project is to increase forest health, improve grizzly bear and bulltrout habitat by rerouting the Colt Road and to reduce fuels in WUI. The Modified Alternative shifted treatment to more understory slashing and prescribed burning and reduced commercial timber harvest by more than half. There was lots of public involvement, and we also met with research scientists. The Lolo Restoration Committee visited the project on a field trip, and the CSKT,DNRC, BLM, localfire district, and etc. also were involved. We had
FWS consult on both terrestrial and aquatic species.

Sandy Mack: we received 3 appeals that included 130 contentions or issues. We grouped them into 6 issues for ease of discussion. These issues are: lynx, grizzly bear, old growth and species viability for Management Indicator Species, soils and aquatics, WUI and treatments, and general NEPA including
CFLRP and request for an EIS.

Debbie Austin: did we miss anything?

Arlene Montgomery: you missed Cumulative Effects and the fact that there is an adjacent project on the Flathead, we don’t need to talk about it, you don’t mention it in your EA.

Sandy Mack: it is in the project record, we considered it when bears were analyzed, the 6th unit HUC for Clearwater happens to be a hydrologic boundary, the silviculturist looked at prescriptions and we looked at them on the ground and we used similar prescriptions.

Arlene Montgomery: It is not clear in your EA that you looked, quite frankly your EA is skimpy and I do not believe you did an effective cumulative effects analysis.

Debbie Austin: Arlene is there anything you would like to discuss?

Arlene Montgomery: we don’t want to go point by point over our appeal points to hear what you say you did.

Debbie Austin: what are the major issues that you really disagree with in this project?

Steve Kelley: it is not our job to design projects for you, you need to drop the project and do the EIS, and we did a lot of work in our comments and appeals, I don’t think this is going to serve anything.

Debbie Austin: what do you think an EIS is going to do?

Steve Kelley: I’ve been asking since 1987, we have a perfect understanding and I think we disagree, it is in the appeal, there is no ambiguity, then ask if you have questions, I’m clear and I understand the project, and I responded in the best way that I could.

Debbie Austin: instead of going over 130 things, I want to understand what truly are your concerns about the implementation over this particular project.

Arlene Montgomery: I think I clearly articulated in my appeal what I think the problems are in the project.

Steve Kelley: I don’t think we have a misunderstanding, we have a disagreement, isn’t this a fair assessment?

Chris Partyka: you seem to feel that there is a level of analysis that we did not do, looking at your appeal
points, then we went to the project record and were able to use that to answer your points. I suggest we tackle lynx or old growth so we can explain how we addressed something, it isn’tfai rfor us to ask you to go through the 1000 plus page appealrecord. Old growth for instance is very small at 17 acres of treatment and we hope to improve the old growth stand and protect it from future fire.

Steve Kelley: we totally understand that you think you can manage old growth, we just disagree.

Sarah Jane Johnson: old growth, you are telling me that you are doing a reasonable job of managing it and I don’t want to listen to you justify that you are managing it.

Debbie Austin: I want you to understand that we did make changes based on your comments, including with old growth, and the project is smaller in terms of activities than it was in the beginning.

Chris Partyka: do you want to offer us something,…

Michael Garrity: no we don’t, drop the decision and do an EIS which we think is what the law requires, and we understand that you disagree with that and I understand that.

Chris Partyka: I was hoping that we could find common ground, this project is a small tidbit at trying to find common ground, how do we get there, is this the flavor of everything from here on out, why can’t we just go over certain points? I was hoping we could resolve it with…

Sarah Jane Johnson: the confusion is we aren’t collaborating in this meeting.

Debbie Austin: no, we don’t intend it to be collaboration, but we want to discuss how we could move this project forward and discuss our agreements.

Sarah Jane Johnson: you are asking us to defend our appeal, we are all irritated by that, and we did a lot of work on our appeal, our offer is drop the project and do an EIS, you are supposed to provide a counter offer.

Debbie Austin: you guys did a lot of work on your appeal and we appreciate that, we also did a lot of work on our end, we haven’t necessarily seen yet what we will gain from doing an EIS.

Arlene Montgomery: I disagree that your analysis was thorough, and it looks like specialists reports that were just cut and pasted in the EA, for instance hydrology brought up wildlife issues that weren’t addressed by wildlife, this is one of the poorest EAs I’ve seen.

Michael Garrity: let’s just see what the appeal review board says.

Debbie Austin: I’ll now provide the public a chance to comment.

Michael Garrity: I’m going to hang up.

There were no public comments.

Meeting ended at 14:15

A few weeks ago, I posted this on the West Bend Vegetation Project, and asked the question “why was this successful?”

Matthew asked the question “could it be because the Deschutes was willing to negotiate with the objectors during the objection process?”

He compared it to the Colt Summit collaborative project, that we’ve discussed many times on this blog. Here’s exactly what he said:

This compares to some other high-profile CFLRP projects, such as the Colt Summit Timber Sale on the Lolo National Forest, in which the Forest Service was completely unwilling to make any modifications or remain flexible even going so far as the Lolo Supervisor telling conservation groups during the appeal resolution meeting “We’re fully funded for this project and we’re not making any changes.” The result was the first timber sale lawsuit on the Lolo National Forest in over 5 years.

So I went back to the record and asked the question.. had the Colt Summit folks changed the proposal based on public feedback?
I had a vague memory of a table that showed changes.. and sure enough, in this link there it was!

But it looks like it was based on public input and not on the result of an appeal resolution meeting. So here’s what appears to have happened (FS people invited to chime in):

The Forest Service initially proposed 1228 acres of commercial thinning when they first presented the project to the public. The Proposed Action was first presented to the public on February 6, 2010 in an official scoping notice (legal advertisement published in the Missoulian newspaper of record). Later, in response to public comment and field findings, the Forest Service developed the modified proposed action, which reduced the commercially thinned acres down to 597 acres.

So it sounds as if, based on what Matthew said, the appellants on Colt Summit might have been satisfied and not litigated if the acres had been reduced still further. I like this because it is honest.. it’s not really about the FS breaking the law, it’s about having power over the outcome.

But the public can’t know for sure, since Mr. Garrity pointedly refused to say what outcomes he wanted, when I asked in this email exchange.

Here’s what Mr. Garrity said:

We do think is is odd that the Forest Service was non-responsive to our comments and appeal and yet we are supposed to believe that if we debate this on a blog site it will bring changes to the project.

So it didn’t seem important to him to inform the public (whose land it is) about his concerns. The FS worked with the public, though, as required by law and regulation.

Here’s the process for Colt Summit was as follows (steps of official public input in bold):

1. Proposed Action Developed by Forest Service considering collaborative input from previous projects

2. Scoping – Proposed Action provided to public for review and comment

3. Public concerns and issues identified and alternatives developed to respond to public’s scoping comments

4. EA Prepared to analyze effects of the proposed action and the alternatives and to display this analysis for public consideration

5. Public Notice – Legal Notice published on December 10, 2010 to inform public that EA and Draft Finding of No Significance (FONSI) is available for public comment.

6. Comment Period – public provided comments on EA during 30 day comment period

7. Modified proposed action prepared and analyzed to respond to public comment. Acreage of commercial thinning reduced from 1228 to 597 acres.

8. Decision Notice and FONSI signed on March 25, 2011 selected the Modified Proposed action

9. Appeal Period – 45 day appeal period begins day of decision

With Colt Summit, there were three additional comment periods with reaffirmation of the original March 25, 2011 decision. None of these decisions were subject to appeal because the Forest Service did not change the original decision.

So Mr. Garrity’s (secret) opinions should count more than the other members of the public because…if the FS doesn’t do the (secret) thing that his group wants, then the project will be delayed in years of litigation. Kind of quasi-extortional. Just some kind of formal mediation process, prior to litigation, would help this kind of thing, in my view, or at least should be tried. Congress.. this would be a simple pilot to try out and not invoke “rolling back environmental laws.”

UPDATE: One of our generous readers offered a copy of the complaint here.

Based on this coverage in the Great Falls Independent paper, I am curious how the FS should have surveyed according to Garrity, and what they actually did.

“First, this case is about the Forest Service’s failure to use ‘best available science’ and properly survey for Canada lynx and report those survey results, and the agencies’ use of improper and inadequate survey results in the finding of ‘no adverse effects’ for lynx, in violation of the National Forest Management Act, National Environmental Policy Act and the Endangered Species Act,” the lawsuit says.

Dave Cunningham, a spokesman for Lewis and Clark National Forest, said the forest has received widespread support for the Blankenship fuels treatment project. The project had been scheduled to be implemented this spring.

“At this point in the process, when a suit is filed, we need to stand down for a moment, study the complaint that has been filed, confer with our Office of General Council attorneys, and then based on their advice, take the next appropriate steps,” Cunningham said.

The lawsuit was filed in U.S. District Court in Great Falls against the U.S. Forest Service, Faye Krueger, regional forester for the agency’s Region 1 and the U.S. Fish and Wildlife Service.

Canada lynx, known for their distinctive facial ruff on each side of the snout, large round feet and black-tipped tails, are listed as a threatened species under the Endangered Species Act. The estimated population in Montana is 300, Garrity said.

The Forest Service issued a biological assessment in July concluding the project wasn’t likely to adversely impact lynx, and the U.S. Fish and Wildlife concurred.

The Fish and Wildlife Service administers the Endangered Species Act.

If a listed or candidate species may be present, agencies must prepare a biological assessment to determine projects would harm them.

It is possible lynx move through the area, but the habitat isn’t considered occupied, according to the Forest Service, but the lawsuit disputes the methods used to reach that conclusion.

“Even the Forest Service previously determined that at least part of the forest is considered ‘occupied’ by lynx,” Garrity said. “So, from the best available present and past data, there is ample evidence to suggest that lynx may be present in the Little Belts and the Blankenship area.”

Montana Fish, Wildlife and Parks trapping records show 268 lynx were trapped in northcentral Montana, which includes the Little Belt Mountains, between 1959 and 1967, Garrity said.

It took me a while to find this site, which has everything you might possibly want to know, including appeal responses, which probably covered this topic.

Here’s what I picked up from a brief foray into Appendix II.

Canada Lynx
The project area is within secondary, unoccupied habitat (USDA Forest Service and USDI Fish and Wildlife Service 2006). There are historic sightings of lynx near the project area from 1979 to 1981, over 30 years ago. From 1981 to 1997 there are nine additional records in the Little Belt Mountains (see project file). These records do not meet the definition of a verified observation or record (USDA Forest Service 2007, pages 142 to 144). Telemetry data of lynx in Montana from Devineau (2010) is not presented at a scale conducive to determining exact locations, and the accuracy of the data varies widely (from 0.15 to 10.0 km). These records also do not meet the definition of a verified observation or record. There are no current sightings in the Little Belt Mountains. During fiscal year 2009, winter surveys were conducted in a portion of the Little Belt Mountains (including the Blankenship Project area). There were no lynx located during these surveys.

Informal consultation for the Blankenship Project was initiated by obtaining the THREATENED, ENDANGERED AND CANDIDATE SPECIES for the LEWIS AND CLARK NATIONAL FOREST 2/13/2012 species list from the Montana Field Office website at http://www.fws.gov/montanafieldoffice/Endangered_Species/Listed_Species/Forests/L&C_sp_list.pdf). Lynx is not included on the FWS species list for the Jefferson Division, nor is the Jefferson Division within designated critical habitat (USDI 2012). The effects of the Blankenship project on habitat for Canada lynx are disclosed in the Blankenship Vegetation Treatment Project Lynx Analysis Report, LAU LB4 (March 2012, project file). This project will have No Effect on lynx or designated critical habitat under the Endangered Species Act.

Would someone be willing to volunteer to learn about this project? (I assume we can’t talk directly to the FS folks due to litigation, as the story says). I’m sure someone here could get a copy of the complaint and the evidence Garrity cites, and we could figure out the two perspectives (plus add our own ;)).

Note: Any volunteers for Project Adoption don’t have to use their real names AND can contact me directly if they don’t feel comfortable announcing it to the world. Terraveritas at gmail.com.